The Decline of the Justice Department

Mukasey’s verdict on Holder.

Jennifer Rubin

January 31, 2011, Vol. 16, No. 19

Former attorney general Michael Mukasey is not prone to hyperbole. He’s a former federal judge, a meticulous lawyer, and, as he proved in succeeding Alberto Gonzales, a skilled administrator who restored morale to a Justice Department demoralized by scandals (real or concocted). He is also obviously nonplussed by the performance of his successor, Attorney General Eric Holder. In a far-ranging interview, he candidly asserts that Holder’s conduct in several key respects has been “amazing.” That’s not meant as a compliment.

Mukasey, who presided over the trial of the 1993 World Trade Center bombers, is as experienced as any American jurist when it comes to the war on terror. It is therefore significant that he finds Holder’s handling of national security matters worrisome. In August 2009, Holder authorized the reinvestigation of CIA operatives who had employed enhanced interrogation techniques on terrorist detainees. It had the feel of a witch hunt: Career prosecutors who investigated the interrogators under the previous administration had concluded there was no basis for a criminal prosecution. A year and a half later, the Holder reinvestigation is still dragging on. “I have to believe that the effect on people involved in national security is devastating,” says Mukasey, “in part because the cases were closed before.” Imagine the impact on a CIA operative who is told, “ ‘There is no basis for prosecution.’ And then someone shows up and says, ‘Not so fast.’ ”

Mukasey, moreover, finds it “amazing” that Holder “conceded he didn’t read the [career] prosecutors’ memo” that recommended against prosecution. He remarks ruefully that “in a sense that is comforting” to CIA employees that there was not something troubling in the memo. But, of course, it is small consolation that the nation’s chief law enforcement officer doesn’t bother to read relevant documents before making a decision with long-term policy implications.

Disarray on matters of national security has been a hallmark of the Holder era. Mukasey is disturbed by the writings and statements of James Cole, who was appointed deputy attorney general by President Obama on December 29, after the Senate went into recess, avoiding a confirmation battle in which those writings would have received scrutiny. Even after Congress passed the Authorization for Use of Military Force Against Terrorists in 2001, Cole insisted that fighting terrorists was a matter of law enforcement—akin to fighting drug dealers and other criminals—rather than national security. Mukasey sees “real problems” with this perspective, though he concedes that Cole’s “view seems to be his boss’s view and the president’s view.”

Of course, some of the hostility towards the war on terror at the Justice Department predates Holder’s tenure. The department’s Office of Professional Responsibility undertook a tendentious investigation of the work done by lawyers John Yoo and Jay Bybee on the legality of enhanced interrogation techniques when the two served in the Office of Legal Counsel during Bush’s first term.

Mukasey relates for the first time the extent of the malfeasance. “We got the OPR report on December 23, 2008, when everyone was getting ready to leave town for the Christmas break, at the end of the administration, with a request to comment by January 5 so it could be released by January 12.” Mukasey and his deputy Mark Filip prepared a detailed letter enumerating the errors and misstatements in the OPR report, with the assurance that the letter along with the report would go to Congress. “When they sent the report, everything but the letter went up.” He says with incredulity, “They said releasing the report to Congress wasn’t making it ‘public.’ ” As for the original OPR report, he observes, “My take was that it was a hatchet job. They quoted one guy who wasn’t even a lawyer and someone who [had] represented John Walker Lindh [the American captured as an enemy combatant in Afghanistan]. They cited an unpublished opinion.” He says succinctly of the OPR report: “It was sloppiness combined with ill will.” After more than a year of additional inquest under Holder, Yoo and Bybee were finally cleared of wrongdoing by a career lawyer brought in to redo OPR’s work.

Mukasey is also critical of the Obama administration’s failure to devise a new legal framework (as the Supreme Court invited Congress and the president to do in the -Boumediene case) to try unlawful combatants. “Right now we have a binary choice,” he says. “There are military commissions or civilian trials.” He continues, “We need something to try [war on terror detainees]. It’s not that I find indefinite detention offensive,” noting that there is ample legal and historic precedent for holding combatants until the end of hostilities. “We never know what the duration of hostilities [will be]. That is a bogus issue. The Germans when they marched into Poland didn’t have a sign saying the war would be over in 1945.” However, “what is not a bogus issue,” he says, is the need for victims to see perpetrators tried and punished.

But while pursuing investigation of CIA operatives, Yoo, and Bybee, Holder’s department has yet to get around to devising a legal framework suitable for the prosecution of Islamic terrorists in American custody.

With regard to the New Black Panther party controversy, incoming House Judiciary chairman Lamar Smith has dispatched a letter to Holder demanding answers to questions and documents relating to political appointee Julie Fernandes’s instructions to civil rights attorneys not to pursue voter-intimidation cases or enforce provisions of federal law designed to prevent fraud against black defendants. Mukasey is flabbergasted that the attorney general would declare in a New York Times interview that in effect “there is nothing to see.” Mukasey says, “I can’t see how he would bring himself to say such a thing. There are investigations pending”—by the Justice Department’s inspector general and Office of Professional Responsibility. The case against the New Black Panthers for intimidating voters at a Philadelphia precinct in 2008 was already won when Holder’s team ordered the charges dropped; famed civil rights attorney Bartle Bull deemed it “the most blatant form of voter intimidation I’ve ever seen.” Says Mukasey, with a measure of indignation, “It seems to me you don’t whitewash such a thing.”

This does revive the theme of “politicization,” an accusation hurled at the Bush administration before Mukasey’s November 2007 arrival at the Justice Department. Mukasey makes a key distinction: “The president runs on policies and has the right to set them. There is a lighter hand for the Justice Department because here there is an obligation to enforce the law.” That said, he cautions, there is no place for political interference in specific cases. Under his tenure, he strictly limited White House contact with Justice Department lawyers. “There was no calling from the administration to argue about individual cases.”

However, it is precisely this sort of political interference and contravention of career lawyers’ work that has become a fixture in Holder’s Justice Department. Recalling that the Office of Legal Counsel had found it unconstitutional to extend voting rights to the District of Columbia, Mukasey remarks, “Holder went to the solicitor general” to shop for a contrary view. “That’s not the purview of the solicitor general,” Mukasey says. But it is the way a partisan attorney general evades legal decisions he doesn’t like.

Indeed, Holder’s civil rights division appears wholly politicized. In addition to the New Black Panthers case, Mukasey cites the recent filing by the Justice Department of a lawsuit against the Berkeley, Illinois, school district alleging that it violated the Civil Rights Act of 1964 by failing to reasonably accommodate the religious practices of a Muslim teacher who wanted to go on the hajj. “This was not a one day thing,” he says, referring to the teacher’s demand for an extended sojourn in Saudi Arabia.

It is ironic, in retrospect, that the Obama administration two years ago entered office vowing to respect the work of career attorneys at the DOJ, to avoid politicization, and to oversee the impartial administration of justice. The closest we have come to the impartial administration of justice in recent years was under Mukasey’s tenure, when he eliminated White House meddling and allowed career attorneys to perform their jobs. No wonder he is dismayed with his successor’s performance.